Thathan @APPELLANT@Hash State Of Kerala

The revision petitioner herein challenges the conviction and sentence against him under Sections 279 and 304(A) I.P.C in C.C.No. 196 of 1993 of the Judicial First Class Magistrate Court, Kayamkulam. A small boy was knocked down and run over by the Lorry No. TNQ-1179 on the Karuvatta Vadakkum Muri Road at about 3 p.m on 7.5.1993. The prosecution would allege that the said lorry was driven by the accused in this case rashly and negligently so as to endanger human life, and the unfortunate accident occurred due to the rashness and negligence on the part of the accused. The Police registered the crime on the first information statement given by a person who witnessed the accident, and after investigation, submitted final report in court.

The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of the accusation was read over and explained to him. The prosecution examined 10 witnesses in the trial court, and proved Exts.P1 to P12 documents.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He projected a defence of total denial, and also disputed the identity of the driver of the vehicle. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty under Sections 279 and 304 (A) I.P.C. On conviction, he was sentenced to undergo simple imprisonment for six months under Section 304(A) IPC, but no separate sentence was imposed under Section 279 IPC.

Aggrieved by the judgment of conviction dated 17.2.1999, the accused approached the Court of Session with Crl.A.No. 86 of 1999. In appeal, the learned II Addl. Sessions Judge, Mavelikara confirmed the conviction and sentence, and accordingly, dismissed the appeal.

On hearing both sides, and on a perusal of the materials, I find no reason or ground for interference in the findings or the conviction made by the courts below concurrently. PW2 to PW4 examined by the prosecution are the material witnesses. The deceased had been walking along the southern side of the road with PW2, from west to east. The lorry also came from the same direction. The evidence given by PW2 is that the lorry came to the wrong side, hit down the child, and he was run over by the vehicle. She also identified the accused in this case as the driver of the vehicle. When asked about the identity, she stated that she had seen the accused on the driver's seat immediately after the accident, and thus she had clearly seen the driver.

PW2 and PW3 are the two persons who witnessed the unfortunate accident. Their evidence is also that the lorry involved in the accident was in fact driven by the accused in this case, and they consistently identified him in open court. They also stated that the accident occurred due to the rashness and negligence on the part of the lorry driver.

The scene mahazar proved by the Police Officer shows that the road at the place of accident has a total width of 7 meters and the exact spot of accident is 1.82 metres from the southern road margin to the north. All the witnesses are consistent that the child happened to be knocked down by the lorry only because the lorry came to the wrong side. All the witnesses are consistent that the lorry came from west to east, and the child along with PW2 was walking along the southern side of the road from west to east. To knock down the boy at a point 1.82 meters from the southern road margin, the lorry should definitely have come to the wrong side. The defence case is that the accident occurred when the boy carelessly crossed the road. If that is acceptable, or if it is true, the spot of accident would have been a few centimeters from the northern road margin. The fact that the boy was knocked down on the southern part shows that the lorry had come to the wrong side. The accused has no explanation why or how the lorry came to the wrong side, or to the southern side. As already stated, the material witnesses have well identified the accused as the driver of the lorry, and they are definite and consistent as to how the accident occurred. I find no reason to disbelieve them or to reject their evidence. Their evidence clearly establishes the prosecution case that the accident occurred due to the rashness and negligence on the part of the lorry driver.

Now  the  question  of  sentence.  The  accident occurred in May, 1993. About 25 years have elapsed since the date of accident. The accused was aged 30 years at the time of the accident. On a consideration of the various aspects including the long lapse of years since the accident, I feel it appropriate to reduce the sentence to the minimum in view of Section 354 (4) Cr.P.C.

In the result, the conviction against the revision petitioner under Sections 279 and 304 (A) I.P.C in C.C 196/1993 of the court below is confirmed and the revision petition is disposed of accordingly. However, the sentence imposed by the court below will stand reduced to simple imprisonment for three months. The revision petitioner will surrender before the trial court within three weeks from this date to serve out the sentence on failure of which, steps shall be taken by the trial court to enforce the sentence.